Imposition of internet intermediary liability
State does not delegate censorship to private entities
Censorship functions are carried out by the government appointed Chief Censor who operates under the Films, Videos and Publications Classification Act 1993 to classify objectionable material.29 The Censor classifies some Internet based expression,30 for example websites hosted and material downloaded in New Zealand are subject to New Zealand law, including age restrictions and banned material. The Act covers any electronic image or file that can be reproduced or shown including cellphone images.
The Classification Office has no jurisdiction in relation to overseas websites. However, material uploaded to overseas websites and any Internet-sourced publications fall within the Act if they are downloaded to a computer in New Zealand. The Department of Internal Affairs Censorship Compliance Unit and the Police do monitor various websites and chat rooms for illegal activity.31 The Classification Office reports that it “has classified clips from YouTube as well as other material from computer files. The majority of computer file submissions have been from enforcement agencies or from the Courts.”32
Internet Intermediary Liability
Frank La Rue notes:33
One of the unique features of the Internet is that the way in which information is transmitted largely depends on intermediaries, or private corporations that provide services and platforms that facilitate online communication or transactions between third parties, including giving access to, hosting, transmitting, and indexing content. Intermediaries thus range from Internet service providers to search engines, and from blogging services to online community platforms…
Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defences.
There is no general legal definition of internet intermediaries, nor any general law on Internet intermediary liability. Liability of intermediaries varies widely across the statute book. For example, in relation to objectionable material, “the law exempted ISPs from liability as far as they provide access to content; it did not exempt them from hosting or caching objectionable content.”34 There is no single approach, nor any clear standard for the circumstances in which intermediaries are in general, or in particular cases, required to be responsible for expression by individual customers or Internet users. In some cases intermediaries have safe harbour provisions and are exempted from liability for online content (for example certain copyright infringements). In other cases, such as the Privacy Act, the law is simply silent. For intermediaries, the outcome of legal action in many cases remains “unpredictable”.35 A proposal for standardising liability was developed in 2007, but has not been progressed.36
Internet intermediaries are not liable for refusing to take action that infringes human rights
There are no relevant cases. Intermediaries are neither liable for, nor specifically protected from refusing to take action that infringes human rights, making compliance with this aspect of the La Rue framework unclear.
State requests to internet intermediaries to prevent access to content, or to disclose private information are:
a. strictly limited to certain purposes such as for the administration of criminal justice
b. by order of a court or independent body.
Apart from Google Transparency Reports, information on this is not readily available from Internet intermediaries operating in New Zealand.
- Private corporations
- act with due diligence to avoid infringing individuals’ rights
- only implement restrictions to these rights after judicial intervention;
- are transparent to the user involved about measures taken and where applicable to the wider public; provide, if possible, forewarning to users before the implementation of restrictive measures; and
- minimize the impact of restrictions strictly to the content involved.
New Zealand has a robust competitive market of service providers and people are free to choose among them, including based on the quality of their terms and conditions of service. There is little research on the quality of private corporations’ rights respecting performance. Anecdotal evidence suggests that some are better than others.
A significant support system for individuals operates through NetSafe which is an independent, not for profit organisation that promotes confident, safe, and responsible use of online technologies.37
There are effective remedies for individuals affected by private corporations’ actions, including the possibility of appeal through the procedures provided by the intermediary and competent judicial authority
Legal remedies, including appeal, are available although are largely untested. Many service providers have complaint systems but information about the effectiveness of these is not readily available.
Private corporations disclose details of content removal requests from States and accessibility of websites
The Google Transparency Report notes that between July 2010 and June 2012 there were four requests for removal of content from the New Zealand government: 15 items were requested to be removed and 75% of removal requests were fully or partially complied with. Two requests were by Court order (one relating to defamation and one to privacy) and two requests were by Executive or Police request (in relation to alleged violent content, privacy and security matters and “other” content).38 Privacy and security requests appear to have been accompanied by Court orders. Alleged violent and hate speech content accounted for 16% of removal requests where no court order existed.
Private corporations operating in New Zealand do not publish similar transparency reports. There is little public information available about remedies for individuals affected by private company action in response to State requests for content takedown. Private corporations do not publish transparency reports summarising, for example, in aggregated form the number of requests for intervention, the number complied with or the general reason for the request. No New Zealand companies (including Internet intermediaries) appear to be participants in the Global Network Initiative (which works to implement the United Nations guidance on business and human rights).39
Internet intermediaries operate in an uncertain legal environment. There are several implications for New Zealanders’ right to freedom of expression. First, individual citizens cannot know, nor be reasonably expected to know, how their Internet related freedom of expression is protected. Second, liability is determined on a case by case basis. However there are also advantages to the absence of a law for all intermediaries: standards can develop on an “as needed basis” and be tailored to address problems as they arise.
29 “Objectionable” is defined in section 3 of the Films, Videos and Classification of Publications Act 1993.
33 Above n 3 p 10, para 38.
34 Judit Bayer, “Liability of Internet Service Providers for Third Party Content”, Victoria University of Wellington Law Review, (Wellington, 2007), Working Paper Series, Volume 1, p 31 in commenting on the Films, Videos and Publications Classifications Act 1993, ss 122 and 122A.
35 Ibid, p 14.
36 The Bayer research compared a range of options for liability regimes and proposed a notice and notice procedure (p105-109). However, this proposal has not been developed further.
39 However, global corporations which offer services to New Zealand are members, including Yahoo! which operates an email and online social media platform for Telecom, a major New Zealand Internet service provider.